Married Parents and Their Children in Perry v. Schwarzenegger

I’ve assigned the trial court opinion in Perry v. Schwarzenegger for my family law class this week, so of course, I’ve read it again myself. (Perry is the case brought in federal court in California challenging the constitutionality of Proposition 8. Proposition 8 was enacted via public vote and amended the CA Constitution to provide that marriage was between a man and a women. Thus, Proposition 8 effectively overturned the CA Supreme Court’s 2008 decision that the CA constitution required that same-sex couples have access to marriage.

There are a couple of points from Perry I want to highlight and discuss, but it is going to take me some time to set this all out. It will require multiple posts, I think. Please bear with me. For those more familiar with the legal developments in this area or with the operation of law generally, I’m sure there are parts you can skim or skip. (I do hope enough people read it to keep me honest.) Also, I’ve written about this before, during the trial of Perry this winter.

As I noted, Perry was brought in federal court and is the first serious case to assert that restrictive marriage laws violate the US Constitution. All the earlier major cases, whether successful or not, exclusively raised claims under the constitution of the relevant state. That’s enormously important for a variety of reasons (like Perry could go to the US Supreme Court while the other cases could not), but perhaps not so much for what I want to comment on here.

No matter in what court, all the cases challenging access to marriage raise some similar issues. There are two in particular that are relevant to me in this blog. First, I think virtually all parties in all cases agree that marriage benefits children. Second, those defending marriage restrictions typically assert that somehow heterosexual couples are better parents, often because they can both be genetically related to the children in question. I’ll discuss each of these further, but I need to do a bit more background.

Apart from the fact that it is in federal court, there’s another distinguishing feature of Perry–it’s an opinion of the court following a trial. As far as I can recall, not one of the cases from state court went to trial–they were generally decided on summary judgment.

The difference may seem slightly technical, but it is also important. The judge in Perry, Judge Vernon Walker, heard live testimony from witnesses. These witnesses, most of whom were expert witnesses, were subject to cross-examination. After hearing the testimony, the Judge made determinations about credibility (who he believed) and ultimately wrote “findings of fact.” By contrast, summary judgment is a paper proceeding without live witnesses and without cross-examination.

So back to my two issues. First–all the parties agree that marriage is good for children. Actually, one could even say this more broadly–all the parties agree that marriage is good for people generally.

If you think about it, you can see why both sides need to agree to this. For the plaintiffs (the people who want to get married) the point is that there is an important thing that would be beneficial for them that the state is denying them. Without this claim–a claim that they are harmed–plaintiffs could not proceed with their case. Since California offers a fairly robust version of domestic partnership, the plaintiffs have to argue that marriage is better than DP and would be better for them (and for their children.) Thus, they are harmed by Proposition 8.

The defendants, too, pretty much have to say that marriage has important benefits for married people. After all, if marriage weren’t really significant, what would be the harm of letting the same-sex couples marry.

You can see this laid out in the judge’s findings of fact at pages 69-71 (findings 38-41.) In particular, finding 41 says:

“The tangible and intangible benefits of marriage flow to a married couple’s children.”

While the proponents of Proposition 8 (who lead the actual defense of the case) did not formally concede this point, I’d be surprised to find they challenge this finding on appeal. Indeed, as I look at it sitting there on the screen, it seems like it must be one of those self-evident truths. Why is it even interesting? Read literally all it says is that to the extent there are benefits to marriage, these benefits will accrue not only to the adults, but also to the children.

What troubles me–and I’ll discuss this more next time–is that many might conclude from this that people who are having children together ought to get married. And perhaps more generally that only married people should have children (especially if/when marriage is available to same-sex couples.) Single parents or unmarried parents–perhaps most especially the latter–deny their children the benefits of marriage. How very selfish of them. This train of thought does trouble me.

As I said, I will discuss this more shortly–I hope to write this AM. Here’s a short (and perhaps too cryptic) version of a response. People who want to get married should be free to get married. But there may be people who do not wish to get married for a number of reasons and it isn’t at all clear to me that getting married against your own best judgment is going to be beneficial overall.

I’m sure there are single parents who would like not to be single parents. But I would guess that generally the root problem is the right person to co-parent with isn’t present. Telling them they ought to get married won’t help them, and it might lead them to marry someone who really isn’t the right person, just so they can get out of the “single parent” category. I’m not sure that’s a great idea.

Is there actually any data that indicates that the benefits of traditional marriage can be extrapolated to same sex marriage?

(btw I find it absurd that the gay marriage issue phrased as an issue of constitutional right/ discrimination instead of definition of marriage. If something doesn’t exist, than no one has a right to it. )

1. The court made a number of findings about same-sex couples. There are two that really address the question you raise, I think. First, #48 (page 77) which begins “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.” (This one is supported by 11 different bits of evidence)this. THen more directly, #50 (page 79) which says simply “Same-sex couples receive the same tangible and intengible benefits from marriage that opposite-sex couplles receive.” Even the proponents witness, David Blankenhorn, testified that marriges between couples of the same sex and those of different sexes operate almost identically. (That’s at 47-48).

I do think it’s important to comment on the process that leads to these findings, since I know they may be controversial. This was a full scale trial. That means each side (and both sides were well-represented and well-funded) got a chance to put on its case. Each side also got a chance to cross-examine the other’s witnesses. In that context I think it is significant that the question raised here doesn’t really seem to have been one that was disupted. I think if there was real evidence to dispute the point, we would have seen it.

2. There are many ways to think about what exactly is at issue when a same-sex couple seeks to get married. You can think about it as sex discrimination: If I were a man, I could marry a woman. The reason I cannot marry a woman is because of my sex. When my sex determines what I can/cannot do, that is sex discrimination. You can think of it as discrimination against lesbians/gay men: Heterosexual people can marry the people they love. Gay men and lesbians cannot. Or you can think about it as constraining access to a fundamental right: The right to marry a person of your choice is deeply embedded in our system. In order to restrict that right, the state must have compelling reasons. In the past we’ve rejected restrictions based on race. This restriction–whatever it is based on–is also impermissible.

The last point does require you to assume, I think, that there’s no legally meaningful difference between a marriage between two women and a marriage between a man and a woman. I think this is why the parties litigated the issue discussed in 1.

Kisarita I want to understand your point:
“(btw I find it absurd that the gay marriage issue phrased as an issue of constitutional right/ discrimination instead of definition of marriage. If something doesn’t exist, than no one has a right to it. )”

I’m not sure if you are opposed to civil marriages for two people of the same gender or if you think that the legal strategy should be to redefine what marriage is rather than frame it as discrimination?

I do think its discriminatory because I don’t think it can be shown that parties necessarily have to be male and female since reproduction is not a requirement of marriage for instance. I do think the strategy is wanting – they’re reaching a little with all the bizarre benefits they are saying their being denied like long life and good health. For many people marriage makes them rip their hair out and wastes their good years. If I were a divorce attorney I’d be all for it – I’d double my income in a few years because the more people that marry the more people will get divorced. We’re all fools when we’re in love.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.